State Farm Mutual Automobile Insurance v. Moreno

785 P.2d 722, 109 N.M. 382
CourtNew Mexico Supreme Court
DecidedNovember 29, 1989
Docket18200
StatusPublished
Cited by2 cases

This text of 785 P.2d 722 (State Farm Mutual Automobile Insurance v. Moreno) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Farm Mutual Automobile Insurance v. Moreno, 785 P.2d 722, 109 N.M. 382 (N.M. 1989).

Opinion

OPINION

SOSA, Chief Justice.

State Farm Mutual Automobile Insurance Co. brought an action for declaratory judgment against its insured Jacent Moreno, his employer, Cable Repair Service of Hobbs, Inc. (Cable Repair), and Cable Repair’s liability insurance carrier, Zurich Insurance Co., asserting nonliability with regard to claims arising out of an accident involving an automobile driven but not owned by the insured. On the night of the accident, September 6, 1986, Moreno was driving from Lubbock to Levelland, Texas, in a Mercury Marquis owned by his employer. The State Farm policy in effect on Moreno’s personal car provided coverage for nonowned automobiles, defined in the policy as an- automobile not available or furnished for the regular or frequent use of the insured. After a bench trial, the district court concluded the State Farm policy provided coverage under the nonowned car clause. Based upon the following discussion, we reverse.

The pertinent facts are undisputed. Moreno was employed in Hobbs by Cable Repair, an oil field service company, and was responsible for client contact and development with respect to sales. He was required to be on call 24-hours a day, seven days per week with alternating weekends off. The company car assigned to Moreno in November 1985 was equipped with a mobile telephone in order for the main office to contact Moreno while he was on the road. Moreno took the car home every night and drove it every week day and many weekends as part of his job duties which included making weekly sales calls in the Levelland, Texas area. During his stays in Levelland, and also while at home in Hobbs, Moreno drove the company car to obtain meals and for other personal use. Moreno’s supervisor, Marty Chambless, testified he had no objections to this practice “just as long as * * * he didn’t abuse a privilege.”

The weekend of September 6 was to be Moreno’s weekend off. He planned to drive his personal car to Levelland on Friday, stay at his girlfriend’s, and, on Saturday, drive to Lubbock for personal shopping. Moreno testified his usual practice, if he was in Levelland on a Friday prior to an “off” weekend, was to either drive the company car to Hobbs and return to Level-land in his personal car, or have his girlfriend follow him in her car to spend the weekend in Hobbs. However, with regard to this particular “off” weekend, the district court found the supervisor told Moreno on Thursday or Friday to take the company car to Levelland because he wanted some equipment delivered that was too large to fit into Moreno’s personal car. The court also found Moreno’s use of the company car when the accident occurred was within the scope of consent of his employer.

State Farm contends the district court erred in ruling, as a matter of law, that coverage was provided under the nonowned car clause. We agree with State Farm’s claim that the basis upon which this conclusion rests, i.e., the finding that on the night of the accident the company car was not furnished or available for Moreno’s regular or frequent use, is unsupported by the evidence. A judgment cannot be sustained on appeal unless the conclusion upon which it is based finds support in the findings of fact. Watson Land Co. v. Lucero, 85 N.M. 776, 517 P.2d 1302 (1974).

In question is the application of the following policy provision:

Non-Owned Car — means a car not:
1. owned by,
2. registered in the name of, or
3. furnished or available for the regular or frequent use of:
you, your spouse, or any relatives. The use has to be within the scope of consent of the owner or person in lawful possession of it.

(Emphasis in original.)

The nonowned car clause extends coverage beyond the automobile scheduled in the policy with the purpose “to protect an insurer against a situation where an insured purchases a policy covering one car and could then be covered as to all automobiles he frequently uses.” State Farm Fire & Casualty Co. v. Price, 101 N.M. 438, 684 P.2d 524 (Ct.App.), cert. denied, 101 N.M. 362, 683 P.2d 44 (1984); see also Keplinger v. Mid-Century Ins. Co., 115 Ariz. 387, 565 P.2d 893 (Ct.App.1977) (purpose to cover occasional or incidental use of other vehicles without payment of additional premium but, concomitantly, to exclude habitual use of other vehicles which would increase insurer’s risk without corresponding increase in premium).

The issue presented requires analysis and application of the terms “regular and frequent use” as found in the non-owned automobile provision. Our application of the terms as used within the purview of the exclusionary clause for non-owned automobiles is controlled by the particular facts of each case and is susceptible to no hard and fast rule. See Farmers Ins. Co. of Ariz. v. Zumstein, 138 Ariz. 469, 675 P.2d 729 (Ct.App.1983); Central Sec. Mut. Ins. Co. v. DePinto, 235 Kan. 331, 681 P.2d 15 (1984); Kunze v. State Farm Mut. Auto. Ins. Co., 197 N.W.2d 685 (N.D.1972). Furthermore, our analysis need not focus upon the terms “furnished” or “available” because the facts clearly illustrate that Moreno had permissive and exclusive use of the company car. See Price, 101 N.M. at 442, 684 P.2d at 528 (test under “furnished or available” clause is availability of automobile for regular use, not frequency of use); see also Waggoner v. Wilson, 31 Colo.App. 518, 507 P.2d 482 (1972) (“available” construed to require potential use of vehicle to be to a substantial degree under control of insured, and vehicle should not be considered “available” where keys and specific permission must be obtained each time use is desired).

Neither party alleges ambiguity in the language of the exclusionary clause; therefore, because New Mexico law has not defined the terms “regular use” or “frequent use” as used in the nonowned automobile provision, they are to be construed in their usual or ordinary sense. See Western Commerce Bank v. Reliance Ins. Co., 105 N.M. 346, 732 P.2d 873 (1987) (unambiguous insurance contracts must be construed in their usual and ordinary sense unless language in policy requires something different).

The term “regular use” suggests a principal use as distinguished from a casual or incidental use, State Farm Mut. Auto. Ins. Co. v. Bates, 107 Ga.App. 449, 130 S.E.2d 514 (1963), and further denotes customary use as opposed to occasional or special use. Zumstein, 138 Ariz.

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Bluebook (online)
785 P.2d 722, 109 N.M. 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-mutual-automobile-insurance-v-moreno-nm-1989.